Opinion
No. CIV S-06-0765 GEB GGH P.
August 6, 2007
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On June 29, 2006, the court ordered the United States Marshal to serve the complaint on defendants. Process directed to defendant Bourland was returned unserved because he retired and did not leave any forwarding information. On December 13, 2006, the court granted plaintiff sixty days to provide additional information to serve this defendant.
On February 15, 2007, plaintiff filed a request for judicial intervention stating that he was unable to locate defendant Bourland. Plaintiff stated that on December 29, 2006, he sent defense counsel a request for production of documents requesting information regarding the location of defendant Bourland. Plaintiff claimed that defense counsel did not respond to this request.
On April 9, 2007, the court ordered defendants to file a response to plaintiff's February 15, 2007, request for judicial notice addressing his claim that defendants failed to respond to his request for production of documents seeking information regarding defendant Bourland.
On April 19, 2007, defendants filed a response to the request for judicial notice. Defendants stated that they contacted the personnel department at Calipatria State Prison to locale information regarding defendant Bourland. The personnel department informed defendants that defendant Bourland was retired and living out of state. The personnel department would not give defendants any contact information regarding defendant Bourland, however, a personnel supervisor contacted the last known number for defendant and left a message that he was to contact the Attorney General's Office immediately. As of April 19, 2007, defendant Bourland had not contacted the Attorney General's Office.
On May 16, 2007, the court ordered defendants to file a verified declaration by counsel indicating when, to the best of counsel's knowledge, defendant Bourland was contacted and whether he had contacted the Attorney General's Office.
On May 21, 2007, defendants filed a declaration by defense counsel stating that on April 11, 2007, a message was left for defendant Bourland to contact the Attorney General's Office immediately. As of May 21, 2007, defendant Bourland had not contacted the Attorney General's Office.
Because of the difficulties described above in locating defendant Bourland, the court directs defense counsel to serve the California Department of Corrections and Rehabilitation with a subpoena requesting information regarding defendant Bourland's address.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to serve defense counsel with the attached subpoena addressed to the California Department of Corrections and Rehabilitation;
2. Defense counsel shall serve the California Department of Corrections with the attached subpoena.
SUBPOENA IN A CIVIL CASE
45 PROOF OF SERVICE DECLARATION OF SERVER TO: California Department of Corrections Rehabilitation 1515 S Street Sacramento, CA 95814 YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case. __________________________________________________________________________________________________________________________________________________ PLACE OF TESTIMONY COURTROOM ___________________________________________________________ DATE AND TIME __________________________________________________________________________________________________________________________________________________ YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case. __________________________________________________________________________________________________________________________________________________ PLACE OF DEPOSITION DATE AND TIME __________________________________________________________________________________________________________________________________________________ YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects): All documents reflecting the current residence or business address of M.E. Bourland. __________________________________________________________________________________________________________________________________________________ PLACE DATE AND TIME Federal Courthouse, 501 I Street, Sacramento, CA Courtroom 24, Eighth Floor 9/13/2007 10:00 a.m. __________________________________________________________________________________________________________________________________________________ YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below. __________________________________________________________________________________________________________________________________________________ PREMISES DATE AND TIME __________________________________________________________________________________________________________________________________________________ Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6). __________________________________________________________________________________________________________________________________________________ ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) DATE GREGORY G. HOLLOWS August 3, 2007 ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER Gregory G. Hollows U.S. MAGISTRATE JUDGE (See Rule , Federal Rules of Civil Procedure, Parts C D on Reverse) This form was electronically produced by Elite Federal Forma, Inc. __________________________________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________________________________ DATE PLACE SERVED __________________________________________________________________________________________________________________________________________________ SERVED ON (PRINT NAME) MANNER OF SERVICE __________________________________________________________________________________________________________________________________________________ SERVED BY (PRINT NAME) TITLE __________________________________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________________________________ I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on _________________________________________ _____________________________________________________________________________ DATE SIGNATURE OF SERVER _____________________________________________________________________________ ADDRESS OF SERVER __________________________________________________________________________________________________________________________________________________ Rule 45, Federal Rules of Civil Procedure, Parts C D:(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.
(1) A party or an attorney responsible for the Issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction which may include, but is not limited to, lost earnings and reasonable attorney's fee.
(2)(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or Inspection of premises need not appear In person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. II objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant
(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if It
(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) if a subpoena
(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's's study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, The court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena, or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
(d) DUTIES IN RESPONDING TO SUBPOENA.
(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.